Delhi High Court
Virender Kumar vs Uoi & Ors. on 9 August, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 11th July, 2011
Judgment Delivered On: 9th August, 2011
+ W.P.(C) 1538/1998
VIRENDER KUMAR ..... Petitioner
Through: Mr.Murari Kumar, Advocate
versus
UOI & ORS. .....Respondents
Through: Mr.Bhupinder Sharma, Dy.Comdt., BSF
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. Appointed as a Constable with Border Security Force
on 4.08.1986, the petitioner was attached with the 57th Bn.
and posted at the Border Out Post (BOP), Ghaniake, Punjab.
On 25.05.1990 a fire broke out in the night in the area
within the jurisdiction of BOP Ghaniake and spread in the
nearby areas and as a result of the fire a consignment of
arms and ammunitions illegally hidden by either terrorists or
subversive elements caught fire and there were blasts.
Several terrorists/subversive elements were arrested and
the next day i.e. on 26.5.1990 a search operation was
carried out at which pistols and explosives, scattered
around in the area, were recovered and seized.
2. It is the case of the respondents that in March 1991
information was received that a BSF personnel had been
apprehended with an unauthorized pistol by the Punjab
Police, which pistol was of Chinese make and was of the
same make and kind as were the pistols recovered and
seized on 26.5.1990. Pursuant to said information, an
inquiry was conducted by the intelligence branch and during
inquiry Ct.Kamaljit Singh (of BSF), made a confession that
during the search operations conducted on 26.05.1990, he
had illegally not entered recovery of 2 pistols which were
recovered during the search operations and did not seize
the same and that 1 said pistol was handed over by him to
the petitioner and the other to L/Nk. Gurmeet Singh. At the
inquiry it transpired that the pistol handed over to L/Nk.
Gurmeet Singh was in turn handed over by him to HC
Surjeet Singh and that the pistol which was handed over to
the petitioner was in turn handed over by him to his relative
Ramesh Kumar who resided in village Khashkhash. It also
transpired that there were other constables of BSF who did
not seize all the pistols which were recovered during search
operations on 26.5.1990. The names of 7 constables of BSF
surfaced as the culprits and needless to state, 1 of them
was the petitioner.
3. It is obvious that it was the duty of BSF jawans, who
recovered arms and ammunitions illegally brought within
their territory of operation, to seize the same and deposit
the seized articles with the appropriate authority. The said
arms and ammunitions had obviously to be forfeited to the
State and thus it can safely be said that the arms and
ammunitions seized were the property of the State.
4. The said 7 BSF jawans, which includes the petitioner,
were charged of having committed the offence of
dishonestly misappropriating government property i.e. the
pistols, for which the Commandant conducted a hearing of
charge on 7.12.1991 in accordance with Rule 45-B of the
BSF Rules 1969. Relevant would it be to note that the
proceedings pertaining to the hearing of the charge have
been typed written and after signing, the Commandant has
recorded the date 7.12.1991, but while typing the date has
been typed: ‟19.12.1991‟ and this appears to be the reason
why in the writ petition it is pleaded that hearing of the
charge took place on 19.12.1991. We are recording said
fact, not because any controversy was raised thereon, but
to remove any confusion with respect to the date.
5. After hearing the charge on 7.12.1991 the
Commandant directed, as noted hereinabove, that Record of
Evidence be prepared and appointed 2-IC Harpal Singh as
the recording officer to prepare the Record of Evidence, and
a joint record of evidence was prepared by him in which
proceedings 7 persons, including the petitioner participated
and were given an opportunity to cross-examine the
witnesses and make statements in defence.
6. 6 witnesses were examined at the Record of Evidence
and since statement of only 1 is relevant for the petitioner,
i.e. of Witness No.5 Sh.B.S.Jamwal, Assistant Commandant,
we may briefly note the same for the reason an argument
was advanced before us that there are discrepancies in
what he stated during Record of Evidence and during the
trial. He stated that in the 2nd week of March 1990 the
Commandant 115th Bn. informed him that Ct.Harvinder
Singh of the 57th Bn. was apprehended by Punjab Police
upon being found to be in possession of a pistol and he had
named 5 other BSF officers as the ones who also illegally
possessed pistols which were recovered during search
operations on 26.5.1990 but were not deposited with the
authority concerned. The BSF personnel named by him were
Ct.Sharanjeet Singh, Ct.Kamaljit Singh, L/Nk.Gurmeet Singh,
Ct.Harpal Singh and one constable who was a resident of
the State of Bihar, but whose name he could not remember.
He i.e. Assistant Commandant B.S.Jamwal was asked to
investigate the matter and he interrogated the persons
named and during interrogation Ct.Kamaljit Singh made a
confession that during the search operation on 26.05.1990
he had picked up 2 pistols, one of which he gave to the
petitioner. The petitioner too made a confessional statement
wherein he admitted having received the pistol from
Ct.Kamaljit Singh and informed that he had kept the pistol in
village Khashkhash, U.P. wherefrom the pistol was
recovered at the instance of the petitioner from the
possession of one Ramesh Kumar on 7.4.1991.
7. Not being relevant qua the petitioner, ignoring
statements made by other persons implicating the other
persons, suffice would it be to note that the Record of
Evidence was placed before the Commandant of the Unit
and considering the same the Commandant directed that all
persons against whom incriminating evidence had surfaced
should be tried at a Summary Security Force Court.
8. A Charge Sheet dated 25.1.1993 was issued to all the
accused, including the petitioner, which reads as under:-
"CHARGE SHEET
No.68588539 Surjeet Singh Accused 57 Bn
Head No.1 BSF
Constable
No.81001397 Gurmeet Accused 34 Bn
L/Nk Singh No.2 BSF
attached
with 57
Bn BSF
No.86005341 Kamaljit Accused 57 Bn
Constable Singh No.3 BSF
No.86008153 Virender Accused 32 Bn
Mtd/Constable Kumar No.4 BSF
attached
with 57
Bn BSF
No.71577103 Laxmi Narain Accused 41 Bn
L/Nk No.5 BSF
attached
with 57
Bn BSF
No.89008025 Sharanjit Accused 57 Bn
Constable Singh No.6 BSF
No.87007299 Anant Ram Accused 57 Bn
Constable Dass No.7 BSF
are charged with:-
First charge DISHONESTLY
(Against MISAPPROPRATING PROPERTY
accused No.1 BELONGING TO THE
to accused GOVERNMENT
No.4 only)
In that they,
jointly near BOP Ghaniake. On
26th May 1990 while
performing the duty of the
search of the area, dishonestly
misappropriated two pistols
having body Registration
Nos.31049910 and 31058115,
the property belonging to the
Government.
Second Charge DISHONESTLY
(Against MISAPPROPRIATED PROPERTY
accused No.5 BELONGING TO THE
only) GOVERNMENT
In that he,
near BOP Ghaniake. On 26th
May 90, while performing the
duty of the search of the area,
dishonestly misappropriated
one pistol, the property
belonging to the Government.
Third Charge DISHONESTLY
(Against MISAPPROPRIATING PROPERTY
accused No.6 BELONGING TO THE
only) GOVERNMENT.
In that he,
near BOP Ghaniake, on 26th
May 1990 while performing
the duty of the search of the
area, dishonestly
misappropriated one pistol,
the property belonging to the
Government.
Fourth Charge DISHONESTLY
(Against MISAPPROPRIATING PROPERTY
accused No.7 BELONGING TO THE
only) GOVERNMENT.
In that he,
near BOP Ghaniake. On 26th
May 1990, while performing
the duty of the search of the
area, dishonestly
misappropriated one pistol
Body Registration No.7160,
the property belonging to the
Government.
Sd/-
25-01-93
(CHANDGI RAM)
COMMANDANT
57 BN BSF
Place : Roshanbagh (WB)
Dated, the 25 Jan, 1993"
9. At the trial all the accused, including the petitioner,
pleaded „Guilty‟; however in view of the nature of the
offence the Court deemed it necessary, to convert the plea
of guilt into „Not Guilty‟ and proceed with the trial.
10. 7 witnesses were examined at the trial and no
evidence was led in defence by the petitioner. From
amongst the 7 prosecution witnesses, only PW-4, PW-5, PW-
6 and PW-7 would be relevant for the instant petition
inasmuch as of the 7 persons put up for trial and found
guilty, only petitioner is before us in the instant petition.
11. Dy.Comdt. K.L.Negi PW-4, deposed that on the
intervening night of 25/26.05.1990 he heard a blast and
intermittent firing in the area around BOP Ghanaike. The
next day the area was searched by a search party and
several arms and ammunition were found lying scattered
which were seized as entered in the various seizure memos
and the arms and ammunitions were deposited at the
Battalion Headquarter. He stated that the petitioner was
not a member of the search party.
12. Dy.Comdt. B.R.Barmola PW-5, corroborated PW-4 and
additionally deposed that after he returned from his leave in
April 1991, Sub.B.S.Jamwal (now Assistant Commandant)
informed him that pistols were misappropriated from the
ones seized during the search on 26.05.1990, 1 of which
was recovered by the Punjab Police from a BSF officer, 1
was recovered from Ct.Anant Ram Das, 1 from a Constable
(Mounted) and 1 from Ajnala.
13. It may be noted that from amongst the accused
persons, only the petitioner was holding the post of
Constable (Mounted).
14. Asst.Cmdt. B.S.Jamwal PW-6 deposed that in the 2nd
week of March 1990 the Commandant of the 115th Bn.
informed him that Ct.Harvinder Singh of 57 th Bn. was
apprehended by the Punjab Police and was found in
possession of a pistol. Said constable named 4 other BSF
officers; namely, Ct.Sharanjeet Singh, Ct.Kamaljit Singh,
L/Nk.Gurmeet Singh, Ct.Harpal Singh and a constable from
Bihar, whose name he could not remember, as the ones who
had similar pistols in their possession. He i.e. PW-6 was
asked to investigate into the matter and interrogate the
persons named and during the course of the interrogation
Ct.Kamaljit Singh made a confession that during the search
operation on 26.05.1990 he had illegally retained 2 pistols 1
of which he gave to the petitioner. He i.e. PW-6 interrogated
the petitioner who admitted that he had received a pistol
from Ct.Kamaljit Singh and stated that he gave the same to
a relative in village Khashkhash, Uttar Pradesh. He i.e. PW-6,
accompanied by an investigating party as also the petitioner
went to the Village Khashkhash and recovered a pistol
bearing number 31053115, of Chinese origin, from the
house of a civilian named Ramesh Kumar. The said pistol
was seized vide memo Ex.-„F‟ in the presence of 2
independent witnesses and the petitioner.
15. On being cross-examined by the petitioner he stated
that on reaching the village, petitioner‟s relative, Ramesh
Kumar, was found in the fields where he disclosed that he
had sold the pistol to 2 other civilians, from whom the pistol
was recovered. That upon Ramesh Kumar identifying the
pistol to be the one he had sold, the pistol was seized on
7.04.1991. That he i.e. PW-6 had appraised the SHO of
Gango Police Station but could not get an FIR registered
since he left early morning with his party on 8.04.1991.
16. We note that the last question put to the witness had
an incriminating tinge to it and so we reproduce the
question and answer for the sake of better understanding:-
Ques.6. Did not you receive Rupees 40,000(Forty
thousand) on 7th April 1991 evening from my
relative Ramesh Kumar assuring him that no FIR will
be lodged against him?
Ans.6. It is wrong that I had received Rs.40,000
(Forty Thousand) from his relative Ramesh Kumar
on 7th April 1991, SI Mukhtiar Singh of the party who
had gone with me was also present there
throughout and who had seized the pistol.
17. SI Mohan Singh PW-7 corroborated PW-4 that the
petitioner was not a member of the search party on
26.5.1990.
18. The Summary Security Force Court returned a verdict
of guilt against the petitioner as also the others and vide
order dated 16.07.1993 sentenced the petitioner to be
dismissed from service. It be noted here that not all accused
were awarded the penalty of dismissal from service. 3
accused were awarded penalty of reduction in rank keeping
in view that their past service was not only exemplary but
they had earned reward/awards and since the petitioner and
3 others had a normal service i.e. neither was it exemplary
in the past and nor had they earned reward/awards, penalty
of dismissal from service was inflicted.
19. Petitioner challenged the verdict of guilt and the
penalty imposed without availing the remedy provided by
Section 117 (2) of the BSF Act 1968 and thus the writ
petition being W.P.(C) No.3063/1994 was disposed of
directing the petitioner to avail the statutory remedy, which
he did but without any success. The statutory petition was
dismissed vide order dated 13/16.06.1997.
20. Needless to state we have before us the present writ
petition challenging the conviction and the sentence dated
16.07.1993 as also the order dated 13/16.06.1997.
21. At the hearing of the writ petition, with reference to
the general pleadings in the writ petition of proceedings
being vitiated at the trial as rules were not followed and
principles of natural justice were violated and the like and in
respect whereof no pleading of fact could be found, learned
counsel for the petitioner restricted submissions to the
arguments which would be noted and dealt with here-in-
after.
22. Two points were urged. Firstly that the petitioner was
not a member of the search party on 26.5.1990 and the
question of his misappropriating the pistol would not arise
and secondly that the conviction was based on the sole
testimony of Assistant Commandant B.S.Jamwal which was
not corroborated and was even otherwise contradicted by
his statement made at the Record of Evidence.
23. The first contention, as urged, is without any logic
inasmuch as whether the petitioner was a member of the
search party or not was irrelevant for the evidence led was
that he illegally received a Chinese make pistol from
Ct.Kamaljit Singh and surely, as a constable in BSF the
petitioner knew that it was illegal to possess a firearm
without a license.
24. But, to be fair to the petitioner we must note that the
charge against accused No.1 to 4, which included the
petitioner was that while performing the duty of search in
the area on 26.5.1990 they dishonestly misappropriated 2
pistols having body registration No.31049910 and
31058115, the property belonging to the Government.
25. Admittedly, even as per the evidence led, petitioner
was not a member of the search party. The evidence led
against the petitioner was of having received a pistol from
Ct.Kamaljit Singh, being the one which was recovered, from
2 civilians to whom Ramesh Kumar, the relative of the
petitioner, had led Assistant Commandant B.S.Jamwal and
others and Ramesh Kumar was accessed upon information
given by the petitioner. We may highlight that the pistol
recovered bears registration No.31058115.
26. Now, we have already observed hereinabove, that the
smuggled pistols of Chinese origin, upon recovery by BSF
jawans were required to be deposited with a Government
Authority and in law the same have to be treated as the
property of the Government. The person who recovered the
same, while discharging his duties, would be deemed to
have come in possession of the pistols on behalf of the
Government and by not depositing the same with the
authority concerned, would be deemed to have
misappropriated the same. To that extent, there is no
ambiguity in the charge. But, the petitioner having not
recovered or seized the pistol during search operation, but
came in possession through Ct.Kamaljit Singh, would at
least be guilty of dishonestly receiving a pistol knowing that
it was dishonestly misappropriated by Ct.Kamaljit Singh.
27. It is settled law that where there is a technical defect
in the language of the charge, but it is correctly understood
by the person concerned, the trial would not be vitiated.
28. The very fact that the petitioner has neither pleaded,
nor has the counsel argued as above, is proof of the fact
that the petitioner clearly understood that the charge
against him was of dishonestly appropriating a pistol which
was recovered during search operations and was the
property of the Government.
29. Thus, we find no misdirected trial on account of a
misdirected charge framed.
30. As regards the argument that the conviction could not
be based on the uncorroborated testimony of Asst. Cmdt.
B.S.Jamwal PW-6, we would only observe that even at a
criminal trial it is permissible to rest a conviction on the
uncorroborated testimony of a witness if the testimony is
found creditworthy and at a Summary Security Force Court
Trial, same principle would apply.
31. The second limb on which testimony of Asst.Cmdt.
B.S.Jamwal was attacked was that there were contradictions
in his statement recorded during Record of Evidence and at
the trial. No such contradictions specifically was pointed out
save and except to pick up sentences not spoken of at the
stage of Record of Evidence and for which we may only
observe that at the trial Asst.Cmdt. B.S.Jamwal has spoken
more graphically and during Record of Evidence had spoken
a little telegraphically. There are no contradictions or
improvements.
32. Now, the recovery of pistol with butt No.31058115 was
not disputed before us and from the testimony of Asst.Cmdt.
B.S.Jamwal we have proof that the pistol was recovered
after Ct.Kamaljit Singh told that he had handed over to the
petitioner 1 pistol recovered by him during search
operations and upon interrogation petitioner told Asst.Cmdt.
B.S.Jamwal that he had handed over the pistol to his relative
Ramesh Kumar who resided in village Khashkhash U.P. and
led B.S.Jamwal to said village where Ramesh Kumar was
found in the fields and he told B.S.Jamwal that he had sold
the pistol to two other civilians and he took B.S.Jamwal to
the said civilians who produced the pistol which was seized
and entered in the memo Ex.„F‟.
33. There is sufficient evidence wherefrom the complicity
of the petitioner can be inferred. We may now highlight the
relevance of question No.6 put by the petitioner to
Asst.Cmdt. B.S.Jamwal during cross-examination and the
answer thereto, both of which have been extracted by us in
para 16 above. The question is an admission by the
petitioner that the pistol in question was recovered from his
relative Ramesh Kumar. Though not relevant, but just by
the way, we may note that the petitioner did not even
desire evidence to be led as he has pleaded guilty to the
charge but in view of the seriousness of the charge, the
Court rightly opined that the plea of guilt should be ignored
and the department/prosecution be called upon to prove the
indictment.
34. Indeed, a BSF constable ought to know that nobody
can possess a firearm without a license. We remind
ourselves that the incident took place in the year 1990
when terrorism had not been fully overcome in the State of
Punjab. Arms and ammunitions hidden by terrorists at
Ghaniake Punjab caught fire and at the search operation the
next day unexploded ammunition and arms were recovered.
Some members of the search party illegally retained a few
pistols. Petitioner became the recipient of one such pistol.
He knew the gravity of the illegal act committed by him.
35. Though no specific argument was advanced that a
discriminatory penalty has been levied, with 3 out of 7
jawans being inflicted with the punishment of reduction in
rank and the other 4 being dismissed from service, we may
note that the 3 who were dismissed were constables and
the question of they being reduced in rank does not arise as
they were at the lowest rung. Secondly, what led the
department to levy a lesser penalty on the 3 jawans was
their long and exemplary service and the said persons
having earned awards/rewards and the 4 who were
dismissed from service had no such past exemplary service
and had earned neither an award nor a reward.
36. That apart, for the illegal act committed by the
petitioner, keeping in view that he was a member of a
disciplined para military force, a service which can brook no
deviant behaviour and especially if the same relates to the
illegal possession of a firearm, we do not find the penalty
levied upon the petitioner to be disproportionate.
37. We dismiss the writ petition but refrain from imposing
any costs keeping in view that the petitioner is without a
job.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
AUGUST 09, 2011
mm
